KIZHEKKE KIZHUKKOTT KUNHOTHI Vs. PAYIKKAT MAMMAD KOYA

JUDGEMENT

(1.) The question raised in this second appeal is whether a second suit for redemption of a kanom is maintainable after the right of the plaintiff to execute the decree in the first suit had become barred by limitation. If there is no complication of the provisions of the Malabar Compensation for Tenants Improvements Act, 1899 (I of 1900), in view of the decision of the Privy Council in Raghunatha Singh V/s. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 L.A. 362 : I.L.R. 56 All. 561 (P.C.) overruling the decision of a Full Bench of this Court in Vedapuratti V/s. Vallabha Valia Raja (a case of kanom) the answer must be in the affirmative. In Viroopaksham V/s. Chem,bu Mayar the subsequent Full Bench had left open the question of the effect of the provisions of the Act on the decision of Raghunath Singk V/s. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 L.A. 362 : I.L.R. 56 All. 561 (P.C.) as on the facts of that case the plaintiff in the earlier suit was different from the plaintiff in the later suit, though it definitely laid down that the decision in Vedapuratti V/s. Vallabha Valiya Raja was overruled by Raghunath Singh V/s. Hansraj Kunwar1. Under Section 60 of the Transfer of Property Act, the right of redemption is extinguished by the Act of parties or by a decree of Court. There is no question here of the extinguishments of the right of redemption by act of parties. The decree in the earlier suit is not produced and there is nothing to indicate in the admission of the plaintiff in the plaint relied on by the defendant, that the decree operated to extinguish the right of redemption. Among the decisions relied on in the judgment of the Court below Mayan Kutti V/s. Kunhammad (1917) 34 M.L.J. 167: I.L.R. 41 Mad. 641 was before the decision in Raghunath Singh V/s. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 L.A. 362 : I.L.R. 56 All. 561 (P.C.) and it practically followed the Full Bench decision in Vedapuratti V/s. Vallabha Valiya Raja . since overruled by the Privy Council. Further the suit was based in that case on a lease and does not appear to be one for redemption of a kanom. In Gopalan V/s. Sankaran Nair (1945) I M.L.J. 326 again the suit was based in a lease and was not one for redemption. No doubt the Malabar Compensation for Tenants Improvements Act brings within its purview suits for redemption; but the provisions of that Act are intended in my view to provide for a final determination between the parties of the amount payable on redemption taking into account the mortgage amount and the value of the improvements and arrears, if any, of rent and do not regulate the right of redemption which is entirely governed by Transfer of Property Act. A suit of this description is always treated as one for redemption and not as a suit between the lessor and the lessee. Even the Court-fee is levied under Section 7(ix) of the Court-Fees Act and not under Section 7(xi)(cc). Of course, if a decree is once passed and if the plaintiff is not otherwise entitled to file a second suit for redemption he is bound to work out his rights under the decree including the revaluation of the improvements and arrears of rent accrued due since the date of the decree in execution of that decree and a separate suit for that purpose is barred under Section 6 (4) of the Act. That is no indication of the extinction of the right of redemption. The fact that a single decree is passed in such a suit not only for the mortgage amount, but also for improvements and arrears of rent does not affect the question, as there is nothing in such a decree providing that in default of payment the right of redemption is extinguished. In the words of the Judicial Committee in Raghunath Singh V/s. Hansraj Kunwar (1934) 67 M.L.J. 813 : L.R. 61 L.A. 362 : I.L.R. 56 All. 561 (P.C.) the right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with. As the question is an important one and is of frequent occurrence, I think there should be an authoritative decision by a Bench. The matter will be placed before the Honourable the Chief Justice for orders.

(2.) On this reference the appeal came up before the Bench and the Court delivered the following

(3.) The question raised in this second appeal is whether a second suit for redemption of a kanom is maintainable after the right of the plaintiff to execute the decree in the first suit had become barred by limitation. As the question is an important one and is of frequent occurrence the second appeal has been posted for decision by a Bench.